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Dealing with domestic disputes has always been one of the most difficult and dangerous aspects of law enforcement. Now, when officers respond to a call to enforce an order of protection, they have one more thing to worry about. According to a recent ruling by the Tennessee Supreme CourtMatthews v. Pickett County (Case No. 01S01-9801-FD-00005). Ruling issued June 14, 1999., if the officers are negligent in enforcing the order of protection and as a result, a victim is injured or suffers damages (personal or financial), then the local government, the sheriff’s office or police department, and the individual officers may all be held liable for the damages.

The court decision arose out of an incident in 1993 concerning a Tennessee county sheriff’s department. A wife obtained an order of protection from a judge to keep her estranged husband away from her after he assaulted her. On the night before their divorce was to become final, her estranged husband attempted to break into her home and threatened to kill her. The wife telephoned the sheriff’s office several times over the course of the evening. The deputies arrived approximately 2 hours and 20 minutes after the first call for help. By this time, her husband had cut the phone lines and set off firecrackers under the propane tank at the house. The deputies spoke to the husband but did not arrest him. It was their belief that they did not have probable cause to arrest him and needed a warrant before they could do so. They took the wife to a judge to swear out a warrant and while they were gone, the husband shot up her car. When they returned and found the car damaged, they escorted the wife out of the county. After they left, the husband set the house on fire, destroying it and killing the wife’s two dogs.

The wife filed suit in Federal Court suing the county, the state, and the two deputies individually and in their capacity as employees of the sheriff, seeking damages for the loss of her home. The U.S. District Court found that the deputies had been negligent, but held that the victim could not recover from the local government or its employees on the theory that you cannot recover damages for injuries caused by a breach of a duty owed to the public at large. This “public duty” principal has been well recognized in the law and often protects local governments from the massive number of lawsuits it might otherwise face. For example, if you are injured by a drunk driver, this principal prevents you from being able to recover damages from the city or county for failure to enforce the drunk driving laws.

After the case was appealed to the Sixth Circuit, that court requested that the Tennessee Supreme Court look at the issue of whether an order of protection creates a “special duty” to protect the person who sought the order of protection that goes beyond the general public law enforcement duties of the sheriff’s office. The Tennessee Supreme Court responded with a ruling issued on June 14, 1999, which held that an order of protection does indeed create a special duty and therefore, a local government and its law enforcement officers may be subject to liability under the Governmental Tort Liability Act for negligence in performing that special duty.

It is vital that all law enforcement personnel understand the law regarding enforcement of orders of protection. Sheriffs’ offices may wish to consider reviewing proper procedures for enforcement of orders of protection with all law enforcement personnel. Under Tennessee Code Annotated § 36-3-611, an officer may make an arrest for violation of an order of protection with or without a warrant.
That statute provides that any law enforcement officer shall arrest the respondent without a warrant under the following circumstances:

(1) The officer has proper jurisdiction over the area in which the violation occurred;
(2) The officer has reasonable cause to believe the respondent has violated or is in violation of an order for protection; and

(3) The officer has verified whether an order of protection is in effect against the respondent. If necessary, the police officer may verify the existence of an order for protection by telephone or radio communication with the appropriate law enforcement department.

Note that the officer need only have reasonable cause to believe that the order of protection has been violated in order to make an arrest. The officer does not have to have probable cause to believe some other crime has been committed and does not need a warrant. Since many orders of protection prohibit any contact between the parties, the mere presence of the respondent at the home of the petitioner can be cause for arrest. Something to keep in mind, however, is that an ex parte order of protection cannot be enforced under T.C.A. § 36-3-611 until the respondent has been served with the order of protection or otherwise has acquired actual knowledge of such order.

Remember, negligent failure to enforce an order of protection may result in liability for the county, the sheriff, and the individual law enforcement officers. It is of upmost importance that all law enforcement personnel understand the law regarding orders of protection and enforce those orders properly.